Persuasive Litigator

Persuade Through Dialogue

By Dr. Ken Broda-Bahm: 

P: Hey, have you seen the amicus brief that was written entirely as a cartoon?

S: A cartoon? You mean someone submitted a joke as an amicus brief?

P: No, not a joke. The lawyer, Bob Kohn, lays out his argument in a series of frames with characters and dialogue, like this. You can see the whole thing here.

S: Wow, did it work?

P: Not in the specific case. The judge went the other way just one day after receiving this cartoon. But it may get better mileage in the court of public opinion, through media coverage and in blog posts including this one.  

S: Speaking of blog posts, why are we in dialogue mode rather than straightforward exposition? 

P: Glad you asked -- that is the interesting part of it. If you look at Kohn's complete brief, it works not so much because of the imagery, but because it is a conversation - a dialogue. The vast majority of the frames in the cartoon - 37 out of 45 - are just two people talking. 

S: That is interesting. Why does dialogue work? 

P: Because our brains respond to it. The simple back-and-forth is punchy, clear in purpose, and easy to understand. 

S: That's true. In just 800 words I was able to understand a pretty complex argument on antitrust issues in the e-book market. 

P: Right, the technique actually has more in common with the Socratic dialogues than with modern graphics or conventional cartoons. 

S: Okay, that is cool, but is there a larger point for legal persuasion? 

P: Absolutely, there is a point for all litigators in and out of court. No, I'm not saying lawyers can switch to cartoons or engage in imaginary 'Eastwooding' conversations in court. But lawyers can apply many of the principles of dialogue to make their persuasion simpler and more effective, and that's what the rest of this conversation will be about. 

S: I figured. 

Ethos, Pathos, and Logos: Use All Three in Your Legal Writing and Oral Argument

By Dr. Ken Broda-Bahm: 

Matthew Salzwedel in Lawyerist recently wrote about ethos, pathos, and logos in legal writing. In case you're trying to remember that early college course in philosophy or public speaking, let me remind you of Aristotle's famous trilogy: Ethos relates to your credibility, pathos lies in your ability to appeal to emotions, and logos is contained in your logical arguments. Salzwedel's point is to emphasize that "ethos and pathos are logical fallacies" because they are irrelevant to legal reasoning, and that "Aristotle will smile" on those advocates who are able to forswear them in their own advocacy and rebut the two when employed by others. 

The post includes much good advice on keeping one's argument rationally focused and free of distraction. But in encouraging advocates to rely only on logos, the Lawyerist piece performs a serious misreading of Aristotle and applies a very narrow interpretation of both ethos and pathos. Viewed in context, ethos, pathos, and logos are three pillars to the same building. While legal argument appropriately prefers arguments grounded in logic, the practical need to convey a complete message means that there is a perfectly appropriate role for ethos and pathos as well. This post picks up where Salzwedel's post left off and discusses the meaning and importance of both ethos and pathos. 

Climb Down the "Ladder of Abstraction" in Patent Cases (And All Cases)

By Dr. Ken Broda-Bahm: 

For many years, the word among intellectual property defendants has been "Don't Mess With (the Eastern District of) Texas." And statistics have borne that out. According to a recent analysis in the Patent, Trademark & Copyright Journal (Pistorino & Crane, 2012), cases in the district have come down in favor of plaintiff patent owners in two out of every three cases. That fact has fostered a gold rush mentality among patent owners, and while some of that venue mojo may just be the force of self-fulfilling prophecies, it is still interesting to look at some of the reasons local observers offer for a continuing plaintiffs' advantage in Eastern Texas. After all, patent cases tend to be abstract and technical. Why would it be better for plaintiffs to try those cases in Texas locales like Beaumont, Tyler, and Texarkana? Bloomberg News posed that question to McKool Smith attorney Sam Baxter, and his response brings it down to earth:  "People here believe if you own something, you own it and certain rights come with that," the Marshall, Texas based attorney said, "If you didn't want someone coming to your pastureland and building a house, you can tell them 'No.' " So it could be that Eastern Texas jurors are just able to understand patent cases in ways that favor plaintiffs and are "grounded" in a literal way. 

Reading that quote reminded me of a snippet of communication philosophy that I learned in graduate school. That was a long time ago, but I try to apply it today to my writing, speaking, and consulting:  Move down the "ladder of abstraction." This post takes a look at what that idea means in patent cases, and all other cases as well. 

Don't Be Spooked by a Legal Ghostwriter

By Dr. Ken Broda-Bahm: 

So you are facing a pro se adversary, and you expect that due to the lack of legal representation, this party is apt to produce briefing that is legally unsophisticated, and perhaps even entertaining, right?  Maybe not.  Just as pro se litigation has been on the rise, so too has its evil partner, legal ghostwriting.  When lawyers team up with a pro se litigant in order to provide anonymous help on a specific brief, or to engage in a more durable background role, there are good reasons to see that as a creepy development.  For one, judges are encouraged by common courtesy, as well as case law, to grant a considerable amount of leeway to pro se parties based on the assumption that they are acting as their own attorney.  If in fact the pro se parties aren't on their own, then they may be gaining an unfair advantage in the briefing process:  The best of both worlds, legal assistance plus lowered expectations. 

This development, now becoming frighteningly common in personal finance and creditor/debtor litigation, has some important implications for source credibility, fair procedure, and legal ethics.  Based on Peter M. Cummins recent article in For the Defense, as well as two related studies on judicial decision making, this Halloween post is going to take a look at how to identify and defend yourself against the legal ghostwriter.